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2017 DIGILAW 1377 (GAU)

Rafique Uddin Barbhuiya v. State of Assam

2017-10-26

ACHINTYA MALLA BUJOR BARUA

body2017
JUDGMENT : 1. Heard Mr. K.A. Mazumder, learned counsel for the petitioner. Also heard Mr. T.C. Chutia, learned Addl. Senior Government advocate appearing on behalf of the respondents. 2. The petitioner was initially appointed as the Secretary of the Mohanpur Gaon Panchayat after participating in a regular selection process. Subsequently, by a notification dated 4.2.2006, the services of the petitioner was regularized and provincialised along with other Gaon Panchayat secretaries with prospective effect. 3. In course of his employment, the petitioner was transferred and posted as the Secretary of Nischintapur Gaon Panchayat under Lala Block in Hailakandi district. Subsequently, on an allegation that the petitioner was involved in some anomaly as regards issuance of job cards, he was placed under suspension by an order dated 23.3.2012. It is stated that there was also a criminal proceeding in respect of the aforesaid anomaly, which also involved many number of other persons and upon investigation by the CBI, charge-sheet under section 173, Cr.PC dated 29.12.2012 has also been submitted and the said proceeding is pending before the appropriate court. 4. The petitioner also relies upon certain enquiry report which has been submitted by the Block Development Officer, which according to the petitioner reveals that it was infact his predecessor, who was involved in such anomaly and not the petitioner himself. 5. It is revealed from the materials produced on record that after the petitioner was placed under suspension by the order dated 23.3.2012, there has been no further review as regards the decision as to whether the petitioner should continue under suspension or not. 6. The law regarding this aspect has been settled by the hon'ble Supreme Court in its judgment rendered in Ajay Kumar Choudhary vs. Union of India, (2015) 7 SCC 291 , wherein, in paragraph 14, it has been provided that the currency of a suspension order should not exceed beyond three months, if within this period the memorandum of charge sheet has not been served on the delinquent. Further after the memorandum of charge sheet has been served, a reasoned order should be passed for extension of the suspension order. 7. In the instant case, the materials on record does not reveal that memorandum of charge-sheet has been submitted within a period of three months and secondly, there was no reasoned order passed for extending the period of suspension. 8. 7. In the instant case, the materials on record does not reveal that memorandum of charge-sheet has been submitted within a period of three months and secondly, there was no reasoned order passed for extending the period of suspension. 8. In view of the aforesaid factual position, by applying the law laid down by the hon'ble Supreme Court in paragraph 14 of Ajay Kumar Choudhary's case, this court is of the view that further continuation of the suspension order dated 23.3.2012 is not justified and accordingly, the same is held to be not further sustainable. 9. In view of such conclusion, the suspension order dated 23.3.2012 is hereby set aside. As the original order of suspension dated 23.3.2012 is not sustainable, any further order is also not maintainable inasmuch as, such subsequent order also does not arrive at any subjective satisfaction as regards the requirement for continuation of the suspension order. 10. Mr. K.A. Mazumder, learned counsel for the petitioner refers to a subsequent order dated 12.12.2012 of the Commissioner Panchayat and Rural Development, Assam. But on perusal of the same, it is noticed that the same is not a reasoned order justifying any extension of the suspension order. But on the other hand, it transpires that the said order is another fresh suspension order against the petitioner. In any view of the matter, once the petitioner has already been suspended, there cannot be any question of a subsequent suspension order for the same purpose. 11. Mr. K.A. Mazumder, learned counsel for the petitioner submits that in this writ petition he is not insisting upon his other prayer for interfering with the disciplinary proceeding initiated against the petitioner. 12. In view of such, there is no interference with the disciplinary proceeding and the petitioner would be at liberty to make a further approach against such proceeding, if so advised. 13. Writ petition is accordingly disposed of.